Article by James H. Jeffries, III
[Note: The author is a retired U.S. Department of Justice lawyer and a retired colonel in the Marine Corps Reserve practicing firearms law in Greensboro, N.C. He is a 1959 graduate of the University of Kentucky and a 1962 graduate of the University of Kentucky College of Law, where he was Note Editor of the Kentucky Law Journal. He is a life member of the North Carolina Rifle & Pistol Association and does not think much of the BATF.]
On October 18, 1995, Thomas A. Busey, then Chief of the National Firearms Act Branch of the Bureau of Alcohol, Tobacco andFirearms (hereafter "BATF") made a videotaped training presentation to BATF Headquarters personnel during a roll call training session. "Roll call training" is weekly or periodic in-house training for BATF officials -- a routine show-and-tell whereby bureaucrats learn about each other's duties and functions.
Busey's national Firearms Act Branch administers the National Firearms Act of 1934,1 the taxation and regulatory scheme governing machine guns, silencers, short-barrelled rifles and shotguns, destructive devices, etc. In his capacity of NFA Branch Chief, Busey was the official custodian of the National Firearms Registration and Transfer record (NFR&TR) mandated by 26 U.S.C. (S)5861.
Busey's presentation was anything but normal, routine or customary. In describing the NFR&TR, Busey made the startling revelation that officials under his supervision routinely perjure themselves when testifying in court about the accuracy of the NFT&TR.
Every prosecution and forfeiture action brought by the United States and involving an allegedly unregistered NFA firearm requires testimony under oath by a duly-authorized custodian of the NFR&TR that after a diligent search of the official records of which he/she is custodian, no record of the registration of the firearm in question was found (or was found but showed a different registrant than the person being prosecuted.)
An alternative method of proving the same facts is by admission into evidence of a certified copy under official Treasury Department seal of a similar written declaration by the custodian. This is a critical element of the government's proof and, according to Busey, occurred 880 times in 1995 alone (presumably Fiscal Year 1995).
Busey began his roll call presentation by acknowledging that "Our first and main responsibility is to make accurate entries and to maintain accuracy of the NFRTR...." Moments later Busey makes the astonishing statement that "...when we testify in court, we testify that the data base is 100% accurate. That's what we testify to, and we will always testify to that. As you probably well know, that may not be 100 percent true."
Busey then goes on for several minutes describing the types of errors which creep into the NFR&TR and then repeats his damning admission:
"So the information on the 728,000 weapons that are in the database has to be 100 percent accurate. Like I told you before, we testify in court and, of course, our certifications testify to that, too, when we're not there to testify, that we are 100 percent accurate."
How bad was the error rate in the NFR&TR? Busey again:
"...when I first came in a year ago, our error rate was between 49 and 50 percent, so you can imagine what the accuracy of the NFRTR could be, if your error rate is 49 to 50 percent."
Does anyone recall the phrase, "Hey, close enough for government work"?
Consider this matter in its starkest terms: a senior BATF official lecturing other senior BATF officials at BATF national headquarters in Washington, D.C., declares openly and without apparent embarrassment or hesitation that BATF officers testifying under oath in federal (and state) courts have routinely perjured themselves about the accuracy of official government records in order to send gun-owning citizens to prison and/or deprive them of their property. Just who is the criminal in these cases?
All this was too brassy for even some BATF officials to stomach. Acting on tips from several BATF officials (there are honest men and women in government, even in BATF), I promptly filed a Freedom of Information Act4 demand precisely describing the Busey tape. The first reaction was predictable. After reviewing the incriminating tape, BATF officials discussed whether they could get away with destroying it. Wiser heads prevailed; obviously any outsider who knew of the tape probably would learn of its destruction -- and I would have. Or perhaps all the official shredders were on loan to the White House.
After much to-ing and fro-ing with a dismayed Department of Justice a transcript of the Busey tape was sent to me in February 1996. The Department of Justice was dismayed because the Busey tape was clearly Brady material. Every defense lawyer knows that under the Supreme Court's 1963 decision in Brady v. Maryland, 373 U.S. 83, the government is required in all criminal prosecutions to provide the defense, in advance of trial, with any evidence tending to show the defendant's innocence. Failure to do so can result in dismissal of an indictment, reversal of a conviction, or other sanctions. Willful failure to produce Brady material can constitute contempt of court, professional misconduct, or even a crime.
The Busey tape was clearly exculpatory and clearly implicated every National Firearms Act prosecution and forfeiture in living memory. Worse yet, Busey was only the tip of the iceberg. When the fog had cleared Justice learned that the NFT&TR inaccuracy problems had been the subject of internal BATF discussion since at least 1979. BATF's files were replete with minutes of meetings, statistical studies, memoranda, correspondence, etc admitting the problem. The only thing missing was any attempt to correct the problem, or to reveal it to anyone outside the agency.
Justice has now commenced the painful chore of advising every NFA defendant in the country of the situation. It did this with a recent mass mailing by United States attorneys to defense lawyers and defendants of relevant BATF documents, including the Busey transcript.
The direct consequences of this institutional perjury are just now beginning to occur.
In Newport News, VA, on May 21, 1996, United States District Judge John A. MacKenzie, after reviewing the Busey transcript, promptly dismissed five counts of an indictment charging John D. LeaSure with possession of machine guns not registered to him.6 LeaSure, a Class II NFA manufacturer, 7 had received BATF transfer approval for the five guns, but then decided to void the transfers and keep the guns, as he was legally permitted to do. He promptly faxed the voided Forms 3 to NFA Branch.
BATF subsequently raided LeaSure and charged him with illegally possessing the five NFA firearms which, according to the NFR&TR, were registered to someone else. The government ignored the fact that on the date LeaSure said he voided the transfers there was a 21-minute call on his toll records from his fax number to NFA's Branch's fax number -- at a time when he could have no idea he would one day be prosecuted for continuing to possess the guns. Rather, the prosecution produced NFA Branch firearms specialist Gary Schaible to testify as custodial of the NFR&TR that the government's official records did not show any voided transfers and therefore LeaSure was in illegal possession of the guns.
In essence Schaible was testifying that "We can't find an official record and therefore the defendant is guilty."
What we now know is that Schaible should have testified that "We can't find half our records -- even when we know they're there -- and therefore we're not sure if anyone is guilty."
The government's case was not aided when Schaible was forced to admit on cross-examination that two NFA Branch examiners were recently transferred because they had been caught shredding NFA registration documents in order to avoid having to work on them.10 Note that they were "transferred." Not disciplined. Not fired. Not prosecuted. Not destroyed in place. Transferred. Just who is the criminal in these cases?
And it is too early to predict how many new trials, appeals and habeas corpus actions will result from this affair. Also of importance is the number of convicted felons presently suffering legal disabilities11 from flawed firearms convictions and what effect the Busey disclosures will have on their situation.
The indirect consequences of BATF's conduct will not be so readily apparent but are potentially devastating. All across the country assistant United States Attorneys, United States District Judges, and other federal and local law enforcement officials are going to learn what most defense lawyers and gun dealers have known for years and what the aftermath of Waco and Ruby Ridge starkly illustrated: BATF officers and agents lie, dissemble and cover upon an institutionalized basis. These are not aberrations; they are an institutional ethic, an organizational way of life. Just who is the criminal in these cases?
Lawyers and defendants in NFA cases who have not received the "Busey" package from the United States Attorney should be making prompt demands -- both for the package and for an explanation of why it was not timely produced. I am acting as an informal clearing house for these matters. Those lawyers or dealers with questions or problems, or with new information, involving the Busey phenomenon, or its continuing aftermath, are invited to contact me at (910) 282-6024.
End Notes:
1. Public Law No. 474, ch. 757, 48 Stat. 1236-1240 (Act of June 6,1934), 26 U.S.C. ss 1132-1132q; as amended by Act of April 10,1936, ch. 169, 49 Stat. 1192; as codified by chap. 736, Act of August 16, 1954 (Internal Revenue Code of 1954), 68A Stat. 721-729; as amended by Public Law No. 85-859, Title II, s203, 72 Stat. 1427,1428 (Act of September 2, 1958); as amended by Public Law No.86-478, ss 1-3, 74 Stat. 149 (Act of June 1, 1960); as amended by Public Law No. 90-618, Title II, s 201, 82 Stat. 1227-1235 (Act of October 22, 1968); as amended by Public Law No. 94-455, 90 Stat.1834 (Act of October 4, 1976); as amended by Public Law No. 99-308,s109, 100 Stat. 449, 460 (Act of May 19, 1986); and as amended by Public Law No. 100-203, 101 Stat. 1330 (Act of December 27, 1987); Internal Revenue Code of 1986, Title 26 United States Code, ch. 53,26 U.S.C. ss 5801-5872 (Title II of the Gun Control Act of 1968).
2. See Federal Rule of Criminal Procedure 27 and Federal Rule ofCivil Procedure 44. See also Rules 803(8), 901(b), 902(1), (2),(4) , and 1005 of the Federal Rules of Evidence.
3. Ibid.
4. 5 U.S.C. S552.
5. The first rule of a bureaucrat is "Never disturb a body at rest." The second, "If I don't do anything, I can't do anything wrong." The third, "When in doubt, mumble."
6. United States v. LeaSure, Criminal No. 4:95CR54 (E.D. Va.,Newport News Div.)
7. "Special Occupational Taxpayers" under 26 U.S.C. s5801 fall into one of three categories: Class III dealers can possess, sell,and transfer NFA firearms; Class II manufacturers can, in addition, manufacture and register them; Class I importers can, in addition to all the forgoing, import them. All SOTs are also required to possess Federal Firearm Licenses, which themselves come in six different classifications. Throw in the import and export licenses and permits required, the various taxes imposed, and the state and local licensing and registration schemes involved, the mandatory record-keeping required, and the shipping and transportation limitations concerned, and you have a lawyer's paradise.
8. BATF forms 3 are used to authorize tax-exempt dealer-to-dealer transfers and to re-register the firearm(s) involved to the transferee. There are numerous other transfer and registration forms used depending upon the nature of the transaction, the status of the parties involved, and the type of firearm and its origin.
9. Violations of the NFA are all 10-year, $10,000 felonies. See 26 U.S.C. s5871. NFA firearms, which carry some impressive sticker prices, are also forfeit, if used in any violation of the NFA. See 26 U.S.C. s5872.
10. We are left to conjecture where the NFA Branch shredder is located in relation to its fax machine.
11. In addition to the loss of civil rights imposed on convicted felons by the laws of most states, felons permanently lose the right under the federal law to possess firearms, as well as being potentially debarred from service in the armed forces, civil employment in government, receiving security clearances, bidding on federal contracts, etc.
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